Briefing Schedule Set in Tenth Circuit in Case on Whether U.S. Constitution Requires Secret Ballot

The opening brief in Citizen Center v Gessler, 12-1414, is due on April 1, 2013 in the Tenth Circuit. This is the interesting case over whether the U.S. Constitution protects a secret ballot. The U.S. District Court had ruled on September 22, 2012, that nothing in the U.S. Constitution requires a secret ballot. The case had been filed originally to stop unique bar codes from being printed on Colorado ballots, because they make it physically possible for an employee of the elections office to learn how a particular voter voted.


Comments

Briefing Schedule Set in Tenth Circuit in Case on Whether U.S. Constitution Requires Secret Ballot — No Comments

  1. How many New Age M-O-R-O-N-S are there in 2013 – esp. in the brain dead media ???

    For NON-morons- see

    http://en.wikipedia.org/wiki/Secret_ballot

    One very major step in the 6,000 plus years W-A-R for REAL Democracy to END the EVIL rule of the monarchs / oligarchs.

    P.R. and nonpartisan App.V.

  2. I have read historical accounts of very early voting where people hung around a polling place in northern Virginia unitl a local, prominent person showed up and
    cast his voice vote. Then most of them voted the same way as George Washington. Evidently HE didn’t think that a secret ballot was necessary.

  3. Voting by voice was fairly common in the South. It wasn’t until 1872 that paper ballots were required in congressional elections.

    Earlier when Congress was debating the manner regulations for senate elections (by the legislatures), there was debate on whether the legislators should vote by secret ballot or voice vote. The representatives from New England wanted it to be done like they did elections – secret ballot. Those from the South were bewildered by that. They couldn’t contemplate an election without everyone publicly stating their position for all to hear.

  4. 3 –

    Moot point. Cattle, even southern cattle, are notoriously taciturn.

  5. as in Animal Farm: just as “secret” anti-American nominating balloting protects voting fraud by undocumented voters created by corrupt foreign finance controlled DNC and RNC political parties, 2nd amendment right protection and recently banned assault rifles are not illegal, just undocumented tools of natural born citizens supporting and defending their collective US Constitution and various state constitutions.

  6. Secret ballots were first used in 1888 by Louisville and Massachusetts. Before then, paper ballots (which became the norm before the Civil War) were often color-coded so as not to be secret. Judged by historical pratices at the Founding and when the Fourteenth Amendment was adopted (1868), I find it difficult to believe that the Constitution requires secret ballots.

  7. 5 –

    Undocumented voters. 2nd amendment protection of assault rifles. Alien presidents. Pink monkey bubble gum. Tap dancing rattlesnakes. Psycho oatmeal.

    I’m with you, brah.

  8. #6 You’re confusing the adoption of the Australian ballot, with a paper ballot in general. Paper ballots originally were just a piece of paper that voters would write-in the name of their favored candidate(s).

    After a court in Massachusetts ruled “printing” of a name could include mechanical printing, newspapers and political parties began printing ballots. Newspapers might do it as a service, a sort of sample ballot, but they might also slant it in a way that was consistent with their political biases, leaving off names of opposition candidates. Voters might assemble their own ballots, or mark up a mechanically printed ballots.

    Elections were typically held outdoors in a public place, and voters would have to work their way through a crowd to deposit their ballot (or ballots) into the ballot box. If you bring the ballots with you, it is easier to fold several up, and stuff the ballot box. As you noted, partisan ballots might be printed with a color. A voter might permit the color of his ballot to be seen as proof that he had paid for his free lunch. Others might carry their ballot close to their vest pocket, so as to not permit their voting intentions to be seen.

    Congress first required paper ballots to be used in 1872. This was in the reapportionment bill after the 1870 Census, which also set the uniform date for congressional elections. This was the first apportionment after ratification of the 14th Amendment, and the requirement of the use of paper ballots and the uniform election date could be seen as an enforcement mechanism for that amendment.

    But just as reasonably, it can be seen as an expression of Northern hegemony after the Civil War. Prior to the Civil War, Congress would never have thought to impose a national standard, if for no other reason than that they couldn’t agree on whose standard to impose. Washington was a horrible place to live, with the only way to avoid yellow fever and malaria to meet for a few months in the winter, and a representative from Ohio was truly from Ohio, and not someone who had a rented apartment. Voting by voice was more common in the South, and the only people in Congress in 1872 who might argue for it were from border states like Kentucky.

    But you could argue that outlawing of voice voting was an attempt to curb voter intimidation. But an argument could be made that public voting promotes openness and transparency. How can the public’s voice be heard if it written on a piece of paper which is secretively deposited in a wooden box?

  9. How many PURGES were there in the EVIL BAD OLDE days with public votes — i.e. threats, loss of jobs, loss of contracts, etc. ???

    SECRET ballots
    OFFICIAL ballots

    MAJOR reforms in the 1800s to reduce the EVIL power of the EVIL robot party hacks — i.e. tyrants.

  10. #6. I am not confusing the two. At the founding (1776 and then in 1787) voice votes were not uncommon. Kentucky continued voice votes (not secret by definition) until after the Civil War. Paper ballots were also common at the founding, but they were not necessarily secret. As you note, newspapers would print ballots with the names of their preferred candidates and voters would use them. Parties then color-coded ballots. None of this was necessarily secret. Secrecy does not equate with paper. Secrecy did not come along until the adoption of official paper ballots in 1888, as I mention above. Congress’s action had nothing to do with this.

  11. #10 While paper ballots were not necessarily secret, they weren’t necessarily public either. And there was no way to trivially tie them easily to a voter after they were deposited in the ballot box.

    Cardinals vote for Pope using paper ballots where they write(-in) their preferred candidate in secret, fold twice and then cast. The ballot papers are burned afterwards.

    Congress first adopted manner regulations for the election of senators immediately after the Civil War (39th Congress, Session 1, Chapter 245). The particular problem they were attempting to address was a deadlock between the two chambers of a bicameral legislature. The Constitution doesn’t say how legislatures should elect a senator, just as it doesn’t say how the people should elect a representative. State senators are likely to be wary of being submerged in a much larger combined body, and if there is a deadlock based on ideology, legislators may be unwilling to pass legislation that would prevent future deadlocks.

    The 1866 law provided that the two chambers would vote separately, and if they disagreed, or no candidate had a majority, they would meet in joint assembly and vote (OMOV). This process would repeat weekly until a candidate achieved a majority, or the legislative session ended (a governor does not have the authority to appoint in the case of non-election).

    The 1866 law also provides that voting be done openly, by voice. Congress actively debated whether voting should be secret or by voice vote. Those advocating a secret ballot, argued that was how they did it in _their_ States and also how their popular elections were conducted. Those who won the debate, argued that a recorded voice vote was how senators were elected in _their_ States, and how popular elections were often conducted.

    The 1872 Apportionment Bill (42nd Congress, Session 2, Chapter 11) was the first passed after ratification of the 14th Amendment. It ended up including a number of additional provisions. It established the uniform election date for congressional elections, and consideration was given to requiring congressional election by paper ballot.

    Such a requirement was passed in separate legislation (42nd Congress, Session 2, Chapter 139). This amended the law that was passed specifically to enforce the 15th Amendment (41st Congress, Session 2, Chapter 114).

    There was a certain ambivalence to whether paper ballots were the purpose of secrecy or convenience. For example, if an illiterate voter would attempt to vote a paper ballot, an election judge would read his ballot aloud so that the voter could confirm that whomever had assisted him in preparing his ballot had followed the voter’s intent.

    The court ruling that permitted mechanically printed ballots occurred in 1829 in Massachusetts, after a voter attempted to vote with such a ballot had it rejected. Political parties were soon printing ballots. Some states attempted to regulate this, but if ballots were to be printed on white paper, one party might use cream, while another would use a brighter white. Parties might print patterns on the back of ballots, etc. A few states went so far as to require use of paper stock supplied by the State.

    In 1851, the Massachusetts legislature required a ballot to be placed in a sealed envelope supplied by election officials. In 1853, after the Democrats gained control of the legislature, the use of the envelope was made optional, and it was not required to be sealed. Some States required ballots to be signed, while others permitted them to be signed.

    So clearly, it was seen that a paper ballot could be secret, though in practice it was not always true. Congress in enforcing the 15th Amendment did require use of paper ballots for congressional elections. Of course paper ballots have some other advantages beside potential secrecy, such as easier to recount, or “resolve” discrepancies in the number of ballots and the number of voters.

    Australia (and Kentucky) went directly from voice voting to government-printed ballots. So in those areas, a government-printed ballot and a secret ballot were equivalent.

    But in most of the US, the Australian ballot was adopted for reasons beyond secrecy. And the secrecy was not solely to prevent others from knowing how a voter voted, but also to prevent the voter from letting others know how he voted, so as to prove that he had voted the “right way”, either because his vote was paid for, or that he had voted the way his employer wanted him, or to influence other voters.

    If most ballots were printed by parties, then a would-be candidate might have to pay to be included on a party ballot (just as happens with slate cards for partisan primaries and nonpartisan elections, except they can’t be voted).

    After the adoption of the Australian ballot, the established political parties worked to make access to the ballot based on association with a party, and to keep independents and smaller parties off the ballot, and to include straight-ticket boxes.

    In essence, instead of the political parties printing ballots, they would have the government printing and distributing the ballots for them. Instead of political toughs keeping opposing parties from distributing their ballots, they would hire lawyers to keep opponents off the ballot.

    The progressives pushed back with partisan primaries, but the parties eventually learned to control these as well. If the state was going to fund a primary, then it had all the more reason to justify keeping other parties off the ballot.

    That is why the Top 2 Open Primary threatens political parties – it fulfills the promise of the Australian ballot.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.